In one of its earliest cases involving the First Amendment and education, the Court ruled in Barnette that students may not be forced to salute the flag if it violates their religious principles. In so doing it overturned its own decision in an identical case only three years earlier, and demonstrated that, even at its highest and presumably most learned levels, constitutional jurisprudence can be fickle.

Jehovah's Witnesses are taken by many to be non-conformist, non-Christian -- and a bit of a pain in the neck with their door-to-door evangelizing. Nonetheless they abide closely held religious beliefs, among them a refusal to salute the flag or any other worldly image. That proscription got them in hot water in the years leading up to World War II.

In the case of Minersville School District v. Gobitis (1940), they fought unsuccessfully for the right to be excused from a law mandating a daily flag salute and pledge of allegiance at public schools. The Court in that case felt that the need for national unity sometimes overshadowed First Amendment rights, and that symbols, including the flag, were legitimate foci of such unity. The Gobitis decision was only one vote short of unanimous.

As the War crept closer and religious Witnesses continued to avoid patriotic gestures, they became the targets of public wrath, including meeting house burnings and open harassment. Witness children who resisted the school mandates were threatened with reformatories.

Nonetheless many scholars saw the Gobitis decision as constitutionally faulty, and even the American Legion came out in favor of a proposed 1942 law that made saluting the flag voluntary.

When Witness Walter Barnette brought suit against a West Virginia law that compelled flag observance and was carefully tailored in accordance with the Gobitis decision, a lower court simply ignored the precedent in an act resembling nineteenth century nullification, and ruled for Barnette.

Similarly, the Supreme Court seemed to get the message. On appeal by the government, the Court reversed its Gobitis decision and found for Barnette on the basis that flag pledges constituted expressions of opinion which were protected by the First Amendment Free Speech clause. In choosing the Free Speech clause, the Court avoided dealing directly with the reversal of Gobitis, where the appeal had been made on the Amendment's Free Exercise clause.

Barnette is seen by many as a turning point in the Court's view of religion. Respect shown the nation's flag is an important principle, especially when war clouds threaten. But genuinely held religious principle is also important, and hails a far higher Power. Gobitis, decided by a Court steeped in the New Deal, refused to elevate religious principle above statist convenience, even when those principles -- not reciting the pledge -- could not be read as a societal threat. Barnette, while itself disappointing in the use of the Free Speech clause to support religious principle rather than the Free Exercise clause, was the last case for a long time to do so. Beginning with a 1963 case, the Court sought to carve out certain constitutional exemptions for religious principles.

Many famous Court opinions leave us with a sentence or two that stands out as uncommon wisdom. Barnette, in a way, is one of those. Often quoted as a ringing defense of freedom, the following phrase turns up in the decision:

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts."

Yes and no. Very true, without our Bill of Rights, the freedom of religion requested in Barnette and Gobitis would likely have blown away with the sands of time. But it was the very fear that the Bill of Rights would come to define "certain subjects" that almost led to its never having been written. Although surely meant by its author to reinforce the well of freedom that should spring in every American heart, the quote does, in fact, cast in us the fear that freedom will be steadily whittled to the last legal parsing of the Bill to suit the powers extant at the time.

In fact the most important "right" inherent in the Bill of Rights is not a "certain subject" at all. It is the combined power of the Ninth and Tenth Amendments, which state that every right not expressly given away in the Constitution is to be retained by the people.